Saturday, December 10, 2011

Supreme clusterfudge

Only because I'm spending this weekend with my family am I substituting the 'candy' for the copulation. I expect to never again hear conservatives complain about "activist judges".

The U.S. Supreme Court agreed to hear an emergency challenge by Texas Republicans to judge-drawn maps that would govern next year’s state and federal elections.

The justices (Friday night) temporarily blocked a lower court order that put the maps in place. The high court said it will hear the case on an expedited basis, with arguments Jan. 9.

I'm not going to interrupt any more of a wonderful weekend watching my lovely niece the advertising model marry the man of her dreams (the former and still-occasional fiddle player for Pat Green) thinking about the Supreme Court's patently ridiculous, precedent-setting decision to give Greg Abbott a hearing on the Texas GOP's law-breaking maps. I'll instead direct to those who have already expressed some measure of surprise and caution.

It is unclear for the moment what this means for Texas elections. For now, there are no legally enforceable maps for state house, senate, or congressional districts, but filing for other races continues with a December 15 deadline. It’s not clear though whether the primary will be moved or will be bifurcated as the State of Texas has suggested.

It’s also unclear what this means for candidates who have filed for office or resigned from office in anticipation of filing. Will candidates be entitled to their filing fees back? Will candidates who resigned from office under ‘resign to run’ laws be entitled to rescind their decisions?

The order also leaves party organization somewhat in confusion since parties organize conventions and select national delegates by state senate districts or congressional districts.

The process of redrawing precinct boundaries also presumably has come to a halt. At the same time, the current precinct lines no longer can be used since the state has new state board of education districts and, in many counties, new county commission district lines- some of which split precincts. Should counties draw new precinct lines taking into account those new districts and seek preclearance of those lines? Will they have to do it all over again once the legislative and congressional maps come to rest?

So in other words, a practical mess whatever the merits of the case.

Li also links to SCOTUSblog (the best read of the potential implications) and Election Law Blog for additional legal reaction. Excerpt from ELB:

Given what the Court did, with no stated dissents, it is not clear why this had to wait until Friday at 7 pm eastern to issue.

More importantly, it is also not clear what is supposed to happen now in Texas. What districts can be used, if the districts crafted by the three-judge court are now “stayed pending further order of this Court?”

I have no freaking clue what comes next. Dozens of candidates have filed for offices, many of them have already raised and spent money, and they may wind up not being eligible for the district they have chosen to run for.

And by "Texas" in that last paragraph, the AP means Attorney General Greg Abbott and hyper-partisan Republicans, whose argument can be summed up as "Waaaaaah!! The San Antonio courts didn't disenfranchise enough Democrats minority, young, and poor people! Antonin Scalia, fix it!"

I’m a bit surprised that we still don’t have a sense of what this does to filing periods. I’m assuming that there has to be an open window for filing after the Supreme Court has anything to say, but it seems that we’re in enough of an unknown that there’s just no telling. It’s entirely conceivable that the SCOTUS could go through all of this exercise and not change a thing about the map. In theory that might seem to allow for March primaries, but the absentee ballots can’t be printed until things are finalized (another domino). But even if nothing changes, would there still be a re-filing period? Considering that Thursday is the deadline for filing, that may make for some very awkward and tough decisions.

Most of all, however, I think that politicos of both Parties and all ilk should follow this one simple instruction: chill out. Without a doubt, lawyers and judges will soon be holding telephonic hearings, during which clarifications will be given, guidance be shared, and more will be revealed. Until then, there is simply nothing anyone can do besides enjoy their weekend.

I have substantial concerns, as the SCOTUS blog link intimates above, that this Court wishes to make some new law, which may include emasculating federal judge panels from correcting wrongs written by hyper-partisan state legislatures, and maybe even take a stab at killing the Voting Rights Act altogether.

But I'm taking Harold's advice. As Scarlett O'Hara said, "I'm not going to think about that today right now. If I do, I'll go crazy. I'll think about that tomorrow."

I believe it highly unlikely that the Supreme Court will simply affirm the interim maps after its January 9 oral arguments. At this point, it appears that a majority of the Supreme Court intends to invalidate some or all of the San Antonio court’s interim maps.

The Supreme Court may also examine whether Section 5 of the VRA remains constitutional. The State of Texas has hinted at possibly bringing a constitutional challenge to Section 5 on the grounds that it usurps Texas’ sovereignty over its election system. Many observers believe that a majority of the Supreme Court has been waiting for a case to declare Section 5 of the VRA unconstitutional, and this may be it.

1 comment:

1) Congratulations on the family festivities -- may the couple have many years of delirious happiness!

2) How can it be activist for the top court in the land to hear a case that is appealed to it? And have you considered that the outcome may be that the maps in question will be upheld -- and that the Supreme Court may at last drive a stake through the heart of the partisan gerrymander?